West Bengal governor Jagdeep Dhankhar sanctioned netas’ prosecution before they took oath as ministers

KOLKATA: A day before Bengal’s new council of ministers was sworn in on May 10, governor Jagdeep Dhankhar issued a press note saying he had given the CBI sanction to prosecute Trinamool leaders Subrata Mukherjee, Firhad Hakim, Madan Mitra and ex-MLA Sovan Chatterjee because the state’s governor was their “appointing authority” as ministers when the “offence took place” in 2016.
The governor’s argument was questioned before the CBI court by Trinamool Congress, which claimed it was “illegal and arbitrary”.
According to legal experts, the period during which the governor gave his sanction — after CM Mamata Banerjee was sworn in on May 5 and before her council of ministers was administered the oath-of-office on May 10 — is legally a grey area.
Questioning the hasty arrest by CBI, former chief justice of Bombay HC Justice Chittatosh Mookerjee said ideally the sanction to prosecute should have come from the assembly speaker. “There needs to be a more clear law on the sanctioning authority,” he said.
Speaker Biman Banerjee claimed he did not receive any communication from the CBI. “I was surprised when the governor gave sanction but it was an illegal and mala fide arrest. If an MLA is arrested, the speaker is to be intimated. But it was not done,” he said.
Section 19 of the Prevention of Corruption Act says, “No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.” The Supreme Court had also held that MPs and MLAs are “public servants” and the prosecuting agency needs to obtain the assembly speaker’s sanction before filing chargesheet against them.
Former Bengal Lokayukta Justice Samaresh Banerjee was of the opinion that when public representatives were involved in a case under the PC Act and sanction to prosecute was given by the governor, it cannot be disputed. “In this case, when the sanction was granted by the governor there was no speaker in office. I presume the Speaker was elected much later,” he said adding that this aspect of the law should be made clear.
Trinamool MP ’s Kalyan Banerjee, who argued for the accused in the CBI court on Monday, pointed out that the governor had given his sanction after the CM took oath of office. “The Constitution mandates that the governor has to act on the aide and advise of the CM and her council of ministers. He cannot act unilaterally. The plea by CBI was made in January 2021,” he said.
Former additional solicitor general Biswajit Bhattacharya said the CBI’s move shows it in bad light. “The two arrested are ministers of the Bengal government and another is an MLA and the fourth an ex-mayor and former minister. None of them was absconding. Did any of them try to flee seeing the CBI or is there any complaint of non-co-operation with the CBI? I do not want to go into the details of sanction as there is scope for arguments, but amid the pandemic there was little need for arrest,” he said.
On the other had, senior advocate Bikash Bhattacharya argued that no sanction is needed for the arrests. “I had also filed a case in the Calcutta High Court in 2021 seeking arrest of the accused in the Narada sting operation as the HC had earlier ordered the CBI probe. I made it clear to the court that no sanction is needed as the accused were involved in criminal offence and so the arrests happened.”
Former advocate general Bimal Chatterjee said the sanction of the speaker is needed if the arrest of an MLA is made from within the assembly complex.
Senior lawyers pointed out that there is legal precedence of the governor — as head of the state — intervening in many such cases in the past. In 2011, Karnataka governor H R Bhardwaj had sanctioned the prosecution of CM B S Yeddyurappa; in 1997, then Bihar Governor A R Kidwai had given his nod to CBI to prosecute CM Lalu Prasad. Before that, in 1995, then Tamil Nadu governor N Chenna Reddy had sanctioned the prosecution of CM J Jayalalithaa.